George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

To deal with the last point first, every state, other than South Australia, uses the term 'high degree of probability' as the standard of proof in relation to state laws concerning the postsentence detention of serious violent offenders or serious sexual offenders. You are looking questioningly at me, Senator McKim, but that is what I am advised. In fact, in preparing this legislation we have been very mindful of trying to ensure that we have followed the existing state legislation quite closely, because the existing state legislation was upheld in the High Court some years ago in a case called Fardon's case. Therefore, to inoculate this legislation against the possibility of a constitutional challenge, we wanted to ensure that we based it on legislation which, as I said, the High Court has upheld.

I am reminded that Tasmania does not have a postsentence detention regime. Perhaps that is why you were looking at me doubtfully a moment ago, Senator McKim. But all of the other five states do, and, of the other five states, only South Australia does not use the term 'high degree of probability'.

Senator McKim, you also invited me to comment on the difference between the so-called Briginshaw standard, 'comfortable satisfaction', and the standard of 'high degree of probability'. I think it is prudent to leave that to the courts; I do. In closing the second reading debate I did respond to some questions you raised as to where 'high degree of probability' sits in the hierarchy of standards of proof between the traditional civil standard, 'balance of probabilities', and the traditional criminal standard, 'beyond reasonable doubt'. I think it is uncontroversial to say that it sits above the former and beneath the latter, as does the Briginshaw standard. In a parliamentary debate, to commentate on the way in which courts might interpret the standard and apply it to a particular case is I think something best avoided. I think that the application of an acknowledged and well-established standard of proof is something best left to the courts, before whom applications under this legislation will be brought, so I will refrain from doing that.

You asked me whether there is any other jurisdiction in the world which has such a standard. Senator McKim, I know that in the United Kingdom, with whose Attorney-General and Home Secretary I have had discussions, there is legislation very much akin to this. I believe that is the case in other states the European Union as well. Certainly, in the United Kingdom there is legislation akin to this.